NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4759-04T44759-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.C.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF G.M.D.,

Minor.

______________________________

 

Submitted October 17, 2005 - Decided

Before Judges Parrillo and Gilroy.

On appeal from the Superior Court, Chancery Division, Family Part, Sussex County, Docket No. FG-19-06-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria DeAlmeida, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor (Rebecca J. Miller, Assistant Deputy Public Defender, on the brief).

PER CURIAM

R.C., the biological father of G.M.D., a four-year old boy, born October 24, 2001, appeals from a final order of judgment of guardianship terminating his parental rights to that child.

On August 6, 2003, the New Jersey Division of Youth and Family Services (DYFS) filed its complaint against P.L.B., the child's biological mother, R.C., and G.M.D., Sr., the individual listed on the child's birth certificate as the father. On August 7, 2003, P.L.B. gave an identified surrender of her parental rights to the child's current caretaker, P.S. On August 15, 2003, an order of dismissal was filed as to P.L.B. On or about September 2, 2003, paternity test results excluded G.M.D., Sr., as the biological father of G.M.D., and on February 26, 2004, a formal adjudication of non-paternity was entered as to G.M.D., Sr. R.C.'s first notice that he was the biological father of G.M.D. was by service of pleadings in the action on or about August 20, 2003. R.C. responded and submitted to a paternity test on January 28, 2004, that established he was the child's biological father. R.C. declined a request to surrender his parental rights and advised that he and his current wife, P.C., desired to gain custody of G.M.D.

The matter was tried before Judge Callahan on April 18 - 20, 2005. On April 27, 2005, Judge Callahan rendered an oral decision, confirmed by order of judgment of the same date, terminating the parental rights of R.C. to G.M.D. This appeal followed.

Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002). Termination actions brought under N.J.S.A. 30:4C-15.1a are decided under a four-part "best interests of the child" standard first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-611 (1986) and now codified in the statute which provides in pertinent part as follows:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" . . . if the following standards are met:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1a.]

The four statutory criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In Re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

On appeal, R.C. argues that DYFS failed to establish by clear and convincing evidence that the order of termination is in the best interest of G.M.D. The law guardian supports the decision below.

Judicial determinations of whether DYFS has established each of the four parts of the required statutory standard to support termination of parental rights of a natural parent are fact sensitive. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005). A trial judge is required to sift through the evidence presented in the case, make judgments concerning the credibility of witnesses and determine whether DYFS has established each of the four statutory criteria by clear and convincing evidence. On appeal, factual findings and conclusions of the trial judge are generally given deference, especially when the evidence is "largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). An appellate court should not disturb the "'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (alteration in original)).

We have considered the arguments advanced by the appellant in light of the record below, and for the reasons stated by Judge Callahan in his comprehensive decision of April 27, 2005, we conclude that the evidence clearly and convincingly establishes that the child's best interests, assessed under statutory standards set forth in N.J.S.A. 30:4C-15.1a, warrants termination of R.C.'s parental rights. See K.H.O., supra, 161 N.J. at 348.

 
Affirmed.

R.C. is also the biological father of a twelve-year old boy and eight-year old twins born of R.C.'s relationships with two other women. The three children do not reside with R.C. and are not subject to this guardianship proceeding.

G.M.D. is a medically fragile child. He was born with fetal alcohol syndrome and suffers from chronic ear infections, speech delays, pediatric encephalopathy, as well as safety and balance issues. He has been diagnosed with epilepsy and suffers grand mal seizures for which he is required to take medication three times per day, as well as medication for behavioral modification. G.M.D. was placed in a special needs foster home maintained by P.S. at the age of six months, and continues to reside in the home along with several other developmentally-challenged children.

(continued)

(continued)

6

A-4759-04T4

RECORD IMPOUNDED

October 28, 2005